0 


p 

0-" 


F 

.Cs 


r  .? 


"10 


n 


Admission  of  Utah 


Limitation  of 

State  Sovereignty  by  Compact  with 

THE  United  States. 


An  Opinion 

GIVEN    BY 

GEORGK  TICKNOR  CURTIS 


Digitized  by  the  Internet  Arciirve 

in  2007  witin  funding  from 

IVIicrosoft  Corporation 


http://www.arcliive.org/details/admissionofutalilOOcurtricli 


Admission  of  Utah. 


Limitation  of 

State  Sovereignty  by  Compact  with 

THE  United  States. 


An  Opinion 


GIVEN    BY 

GEORGE    TICKNOR    CURTIS 


New  York: 
printed  for  the  author 
by  hart  &  von  arx. 


1887. 


'^O 


Bancrorr  f.fbrarv 

^3  77 


OPINION. 


I  have  been  requested  to  give  my  opinion  on  the  Constitutional 
vaHdity  of  certain  clauses  in  the  proposed  State  Constitution  for  Utah 
relating  to  polygamy  and  bigamy. 

These  clauses  are  the  follovk'ing  : 

Art.   XV.— Sec.  12.     Bigamy  and  polygamy  being  considered  incompatible 

■with  "a  republican  form  of  government,"  each  of  Ihem  is  hereby  forbidden  and 

declared  a  misdemeanor. 

ff         Any  person  who  shall  violate  this  section  shall,  on  conviction  thereof,  be  pun- 

C  'ished  by  a  fine  of  not  more  than  $1,000  and  imprisonment  for  a  term  not  less  tharp 

2isix  months  nor  more  than  three  years,  in  the  discretion  of  the  Court.     This  section? 

shall  be  construed  as  operative  without  the  aid  of  legislation  and   the  offences  pro- 

^hibited  by  this  section  shall  not  be  barred  by  any  statute  of  limitation  within  three 

™years  after  the  commission  of  the  offence;  nor  shall  the  power  of  pardon  extendi 

^thereto  until  such  pardon  shall  be  approved  by  the  President  ot  the  United  States. 

C^  It  will  thus  be  seen  that  this  provision  requires  for  its  operation  no- 
legislation  whatever,  but  that  indictments  can  be  found  under  it 
and  punishments  inflicted,  and  the  pardoning  power  in  respect  to  the- 
offence  is  limited  by  a  check  in  the  hands  of  the  President  of  the 
United  States. 

This  Constitution  contains  an  article   prescribing  the  manner  m\ 

which  amendments  must  be  framed   and  adopted.     But  the  power  of 

amendment  is  limited   by  the  following  proviso,  expressly  drawn  an<M 

devised  so  as  to  prevent  any  amendment  or  change  in  the  anti-polygai- 

my  section  without  the  assent  of  Congress  : 

Provided^  That  Section  12  of  Article  XV.  shall  not  be  amended,  revised,  or  nv 
any  way  changed  until  any  amendment,  revision  or  change,  as  proposed  therein 
shall,  m  addition  to  the  requirements  of  the  provisions  of  this  article,  be  reported  to 
the  Congress  of  the  United  States  and  shall  be  by  Congress  approved  and  ratified^ 
and  such  approval  and  ratification  l)e  proclaimed  by  the  President  of  the  United 
States,  and  if  not  so  ratified  and  proclaimed,  said  section  shall  remain  perpetual. 

My  opinion  has  been  requested  upon  the  question  whether  the  pro- 
posed check  on  the  pardoning  power,  which  this  Constitution  would 
vest  in  the  hands  of  the  President  of  the  United  States  in  the  case  of 
an  offence  prohibited  by  a  State  Constitution,  and  the  proposed  lim- 
itation on  the  power  of  amending  the  Constitution  in  regard  to  ther 
polygamy  and  bigamy  denounced  by  Section  12  of  Article  XV. ,  are- 
consistent  with  or  repugnant  to  our  system  of  government.  This- 
question  of  the  limitation  of  a  State  sovereignty  by  a  compact  betweeru 
the  State  and  the  United  States  is,  in  the  precise  aspect  in  which  it  here 


arises,  a  new  one  ;  but  it  is  not  a  new  question  in  principle,  and  there 
are  precedents  which  will  not  only  afford  important  aid  in  its  solution, 
but  which  are  conclusive. 

As  preliminary  to  the  discussion  of  this  question  it  will  be  useful 
to  say  something  respecting  the  nature  of  the  political  system  formed 
by  the  Union  of  the  States  under  the  Federal  Constitution.  The 
framers  of  that  Constitution  made  a  great  discovery  in  the  science  of 
government,  to  which  they  were  led  by  the  consideration  that  the 
States  were  independent  political  communities,  although  then  united  by 
the  Articles  of  Confederation  for  certain  purposes  common  to  them  all. 

The  grand  effort  of  the  Federal  Convention  of  1787,  which  framed 
the  Constitution  of  the  United  States,  was  to  make  a  system  of  gov- 
ernment for  the  Union,  which,  while  having  certain  specific  powers 
ceded  to  it  by  the  people  of  each  State,  would  still  be  consistent  with 
the  preservation  of  the  State  sovereignties  in  all  other  respects.  The 
discovery  that  was  made  in  the  process  of  forming  the  Federal  Con- 
stitution was  that  sovereignty,  which,  in  our  American  sense,  means 
only  the  political  authority  of  the  people,  is  divisible  according  to 
ithe  subjects  on  which  it  acts  ;  that  some  powers  of  government  can  be 
vested  in  one  class  of  public  agents,  and  all  others  can  be  retained  by 
the  people  in  whom  they  primarily  reside  ;  and  thus  that  the  individual 
inhabitants  of  separate  political  communities  can  be  acted  on  by  two 
^distinct  governments,  each  of  which  has  its  appropriate  sphere.  But  this 
anode  of  constituting  a  mixed  political  system  required  that  the  Fed- 
eral, or  central  government,  should,  by  express  provision,  be  made  su- 
ipreme  and  paramount  in  the  exercise  of  all  the  powers  ceded  to  it  by 
the  peopte  of  the  several  States.  That  the  people  of  the  several  States 
would  retain  all  the  original  and  inherent  powers  not  parted  with  by 
cession  to  the  Federal  Government  was  assumed  to  be  a  fundamental 
amplication,  resulting  from  the  fact  that  the  powers  granted  to  the 
Federal  Government  were  specific,  described,  limited  and  enumerated, 
and  did  not  comprehend  all  the  powers  of  sovereignty.  But  when  the 
Constitution,  as  originally  framed  and  promulgated,  came  before  the 
people  of  the  several  States  for  adoption  and  ratification,  they  were  not 
content  to  leave  this  very  important  matter  to  implication;  they  de- 
manded an  express  reservation  of  all  the  powers  which  were  not  to  be 
ceded  by  the  people  of  the  several  States  to  the  Federal  Government, 
or  which  they  were  not  to  be  prohibited  from  exercising.  Accordingly 
the  Tenth  Amendment,  adopted  in  1789-91,  was  made  to  declare  : 

"The  powers  not  delegated  to  the  United  Slates  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people." 


By  this  reservation,  every  State  remains  a  self-governing  political 
community,  in  respect  to  its  own  inhabitants,  in  every  relation  in  which 
those  inhabitants  are  not  by  the  Constitution  of  the  United  States 
placed  under  the  authority  of  the  Federal  Government. 

It  is  this  mass  of  rights,  privileges  and  powers  not  vested  in  the  Fed- 
eral Government,  but  retained  by  the  people  of  each  State,  that  consti- 
tutes the  State  sovereignty.  It  follows  as  a  necessary  consequence 
from  this  system,  that  the  people  of  every  State  in  this  Union  have  under 
their  entire  control  every  relation  of  their  inhabitants  that  is  not  under 
the  control  of  the  United  States,  by  reason  of  some  provision  in  the 
Federal  Constitution.  With  the  domestic  relations  of  their  inhabi- 
tants the  States  can  deal  as  they  see  fit. 

There  is  another  marked  and  prominent  characteristic  of  our 
political  system  evinced  by  the  provisions  of  the  Federal  Constitution.- 
It  is  that  each  State,  by  and  through  that  Constitution,  enters  into- 
compacts  and  agreements  with  all  the  others.  They  are  pro- 
hibited from  making  agreements  with  each  other  without  the 
con.sent  of  Congress  ;  but  they  may  and  do  covenant  perpetually 
and  irrevocably,  by  and  through  the  Constitution  of  the  United' 
States,  that  the  Federal  Government  shall  have,  and  exercise  all 
the  powers  ceded  to  it  by  their  assent  to  the  Constitution,  and  that 
no  State  shall  exercise  any  power  prohibited  to  it  by  that  instru- 
ment. The  idea,  therefore,  of  compacts,  covenants  and  agreements 
between  the  separate  States,  as  members  of  the  Union,  and  the 
United  States  as  the  representative  of  all  the  States  collectively,  is  im- 
bedded in  the  Federal  Constitution,  and  forms  its  principal  strength. 
It  is  what  gave  the  Federal  Government  authority  to  vindicate  and 
assert  its  own  existence  and  powers  against  an  attempt  of  certain 
States  to  break  the  compacts  which  they  had  respectively  made  with 
the  United  States  when  they  ratified  and   adopted  the  Constitution. 

The  loth  section  of  Article  I.  of  the  Constitution  contains  the  pro- 
hibitions which  it  has  laid  upon  the'States.  Some  of  these  prohibitions 
are  absolute  ;  others  relate  to  things  that  can  be  done  only  by  the 
consent  of  Congress.  Fvery  one  of  them,  both  those  that  are 
absolute  and  those  that  are  conditional,  relate  to  things  that  every 
State  would  have  a  perfect  right  to  do  if  it  had  not  covenanted 
with  the  United  States,  in  and  by  the  Constitution,  that  it  will 
not  do  them.  But  the  prohibitions  owe  all  their  force,-  all  their 
obligation,  all  their  restraining  efficacy,  to  the  compact  which 
every  State  has  made  with  all  the  others,  collectively  styled  the 
United  States,  whereby  each  State  has  limited  its  own  sovereignty  '\r% 


6 

«oertain   respects    over    which    it   would    otherwise    have    retained   full 
ccmtrol. 

It  follows  from  this  statement,  as  a  legitimate  deduction,  that  such  a 
coyenaiH,  entered  into  between  the  several  States  and  the  United 
States,  clothes  the  Federal  Government  with  authority  to  enforce  the 
prohibitions  when  a  State  undertakes  to  break  the  compact  into  which 
it  has  entered.  Take,  for  example,  one  of  the  absolute  prohibitions  : 
-''No  State  shall  enter  into  any  Treaty,  Alliance  or  Confederation.'* 
If  any  State  were  to  do  what  is  thus  prohibited,  is  it  to  be  supposed 
that  there  would  be  no  remedy }  that  the  United  States  would  have  no 
constitutional  power  to  prevent  the  operation  of  the  treaty,  alliance  or 
confederation .'  Take  one  of  the  conditional  prohibitions :  '*  No 
State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  tonnage, 
keep  troops  or  ships  of  war  in  time  of  peace."  It  is  not  to  be  im- 
agined that  if  a  State  were  to  undertake  to  do  one  of  these  things  the 
United  Slates  would  be  powerless  in  the  matter.  And  if  it  is  asked 
-what  the  remedy  would  be,  I  answer  that  it  would  not  be  by  Federal 
action  against  the  State  itself  in  its  corporate,  political  or  sovereign 
capacity  ;  it  would  be  by  appropriate  legislation  to  reach,  restrain  or 
ipunish  individuals  who  should  undertake  to  carry  out  the  will  of  their 
State  in  respect  to  a  thing  that  it  had  covenanted  that  it  would  not  do 
•or  attempt  to  do.  This  authority,  which  results  necessarily  from  the 
I'ight  of  the  United  States  to  execute  every  part  of  the  Constitution, 
Tests  for  its  foundation  on  the  compact  that  every  State  has  made  with 
the  United  States  that  it  will  not  exercise  its  own  sovereignty  in  cer- 
tain matters,  but  that  in  those  matters  it  has  submitted  its  own  sover- 
eignty to  the  control  of  Congress. 

Commencing,  then,  with  the  frame-work  of  the  Constitution  alone, 
vwe  find  that  it  is  largely  and  primarily  founded  in  irrevocable  com- 
ipacts  between  each  State  and  the  United  States,  whereby  every  State 
Bias  diminished  its  own  sovereignty  in  certain  important  particulars. 
Other  examples  of  the  diminution  or  limitation  of  the  State  sover- 
«eignties  will  be  found  in  the  amendments  adopted  after  the  close  of  the 
Civil  War,  some  of  which  largely  curtailed  the  previous  State  powers. 
These  curtailments  and  diminutions  of  State  sovereignity  rest  on 
compacts  made  by  the  several  States  with  the  United  States. 

What,  then,  is  to  prevent  a  new  State,  or  the  people  of  a  proposed  new 
State,  when  they  present  themselves  for  admission  into  the  Union  under 
a  Republican  Constitution,  from  doing  that  which  every  State  did  when 
it  ratified  and  accepted  the  Constitution  of  the  United  States,  whether 
it  was  one  of  the  original  thirteen  States,  or  was  one  that  came  into  ex- 


istence  as  a  State  since  the  year  1789?  Is  it  said  that  the  renuncia- 
tions of  State  sovereignty  which  were  made  by  the  States  when  they 
entered  the  Union  under  the  Constitution  were  made  by  all  alike,  and 
related  to  matters  of  common  concern,  whereas  a  matter  that  is  pecu- 
liar to  the  social  condition  or  situation  of  a  proposed  new  State  is  not 
of  that  character  ?  This  would  be  a  begging  of  the  question ;  for  the  ques- 
tion here  is  what  compacts  in  diminution  or  limitation  of  its  own  sov- 
ereignty is  it  constitutionally  competent  for  any  State  tu  make  with  the 
United  States  ?  Must  it  be  one  that  every  other  State  has  made  or 
ought  to  make,  or  wishes  to  make?  Or,  if  it  is  one  that  is  peculiar  to 
the  situation  of  the  proposed  new  State,  growing  out  of  the  present  or 
past  social  condition  of  that  people,  is  it  excluded  from  the  category 
of  agreements  and  covenants  that  a  State  can  make  with  the  United 
States  ?  The  precedents  that  will  be  cited  in  the  course  of  this  opinion 
answer  this  question  emphatically  in  the  negative. 

Although  it  has  sometimes,  and  generally,  been  the  legislative  prac- 
tice of  Congress,  when  admitting  new  States  into  the  Union,  to  declare 
that  they  are  admitted  on  an  equal  footing  with  the  original  States  in  all 
respects  whatsoever,  yet  the  Constitution  does  not  require  this  declara- 
tion. It  simply  provides  that  "New  States  may  be  admitted  by  the 
Congress  into  the  Union."  The  equality  is  an  incident  of  the  admis- 
■sion  ;  which  imports  of  itself  that  the  State,  after  it  has  become  a 
member  of  the  Union,  is  to  enjoy  all  the  rights  and  privileges  of 
such  membership.  But  this  in  noway  affects  the  conditions  on  which 
Congress  may  see  fit  to  grant  the  admission.  It  is  not  necessary  that 
those  conditions  should  be  such,  and  such  only,  as  have  been  made 
with  every  other  State  that  has  been  admitted  under  the  power  given 
in  Section  3  of  Article  IV.  Equality  of  membership  in  the  Union 
means  that  every  State  shall  enjoy  the  same  rights  and  privileges 
^s  every  other  State.  One  of  the  rights  of  every  member  of  the 
Union  is  a  right  to  make  covenants  and  agreements  with  the  United 
States  in  any  form  in  which  the  parties  can  unite.  If,  when  it  enters 
the  Union,  a  new  State  makes  a  covenant  with  the  United  States  in 
diminution  or  limitation  of  its  sovereignty,  in  a  way  in  which  other 
States  have  not  limited  or  diminished  theirs,  the  new  State  is  not 
placed  in  the  Union  on  an  inequality  with  the  other  States.  There  is 
no  inequality  in  respect  to  any  light,  privilege  or  standing  as  a  mem- 
ber of  the  Union.     To  use  the  present  case  as  an  illustration  : 

The  people  of  Utah  propose  to  covenant  with  the  United  States,  in 
their  State  Constitution,  that  the  State  Executive  shall  not  grant  a 
pardon  to  a  person  convicted  of  polygamy  or  bigamy,  without  the  con- 


8 

currence  of  the  President  of  the  United  States;  and  that  they,'the  people 
of  the  State  of  Utah,  will  never  amend  or  change  that  part  of  the  Constitu- 
tion which  [makes  and  punishes  the  offences  of  polygamy  and  bigamy, 
without  the  consent  of  Congress.  Why  have  they  offered  to  make  this- 
compact?  Because  there  is  a  peculiarity  in  their  past  social  condition 
which  requires  that,  in  order  to  remove  a  possible  objection  to  their  ad- 
mission into  the  Union  as  a  State,  they  shall  make  this  compact  ini 
diminution  of  what  would  otherwise  be  their  unlimited  sovereign  right 
to  change  their  Constitution  in  this  respect  at  their  own  pleasure. 
It  has  nothing  to  do  with  the  Constitutional  validity  of  this  compact 
that  other  States  have  not  made  it,  or  have  not  been  in  the  same  situa- 
tion, or  have  not  had  the  same  motive.  This  will  abundantly  appear 
from  the  precedents  which  are  to  be  cited. 

I  have  always  regarded  Section  3  of  Article  IV.  of  the  Constitu- 
tion of  the  United  States,  as  the  source  and  the  only 
source  of  the  power  of  Congress,  not  only  to  admit  new 
States,  but  to  create  and  govern  those  peculiar  dependen- 
cies which  have  come  to  be  denominated  "  Territories,"  but  which, 
should  be  kept  in  that  condition  no  longer  than  is  necessary  to  allow  of 
their  development  into  communities  fit  for  the  rights  and  privileges  of 
Statehood.  It  is  thirty  years  since  I  had  occasion  to  study  this  part  of 
the  Constitution  and  the  legislation  under  it  with  peculiar  care  ;  and 
although  the  result  in  the  case  of  Dred  Scott,  in  the  argument  of  which. 
I  took  part  in  the  Supreme  Court  of  the  United  States,  in  1856-7,  was- 
not  what  I  hoped  for  and  endeavored  to  bring  about,  I  venture  to 
•ay  that  the  doctrine  for  which  I  then  contended  and  which  was  ac- 
cepted by  Justices  McLean  and  Curtis,  is  now  almost  universally  con- 
ceded by  Constitutional  lawyers  in  all  parts  of  the  Union.  The  doc- 
trine was  this:  That  Section  3  of  Article  IV.  of  the  Constitution, 
primarily  designed  to  provide  a  legislative  authority  and  process  for 
bringing  new  States  into  the  Union,  clothed  the  Congress  of  the  United 
States  with  a  plenary  legislative  power  to  dispose  of  the  public  property 
denominated  "the  territory"  of  the  United  States,  as  well  as  all  other 
property  of  the  United  States,  and  with  a  plenary  legislative  power  to 
form  the  settlers  on  the  public  domain  into  political  communities  and 
to  govern  those  communities  so  long  as  they  should  remain  in  a  state 
of  pupilage  or  preparation  for  admission  into  the  Union  as  States.* 

*♦'  The  Constitutional  Power  of  Congress  over  the  Territories. "  An  argument 
delivered  in  the  Supreme  Court  oi  the  United  States,  December  18,  1856,  in  the 
case  of  Dred  Scott,  plaintiff  in  error,  v.  John  F.  A,  Sandford,  by  George  Ticknor 
Curtis  :  Boston,  Little,  Brown  &  Company,  1857. 


9 

But  as  the  formation  and  admission  of  new  States  was  the  primary  de- 
sign of  the  section,  it  follows  that  Congress  is  placed  under  the  obliga- 
tion of  a  public  TRUST  to  permit  such  communities  to  become  Slates, 
and  to  bring  them  into  the  Union  as  States  when  the  people  desire  it, 
and  they  have  sufficient  population  and  resources  to  sustain  a  State 
government,  republican  in  its  form  and  spirit.  It  is  not  a  proper  dis- 
charge of  this  public  trust  to  keep  any  Territory  indefinitely  in  the 
condition  of  a  Territory,  thereby  keeping  open  a  field  for  the  continued 
exercise  of  Federal  patronage  and  power.  Territorial  government  is. 
not  self-government ;  and  although  ii  is  necessary  for  a  certain  period 
for  Congress  to  govern  the  settlers  on  the  public  domain — a  period 
that  may  vary  in  different  cases — yet  where  the  Territorial  community 
has  become  so  large  and  so  prosperous  that  its  people  are  entirely 
capable  of  governing  themselves,  it  is  contrary  to  the  spirit  of  our  insti- 
tions  and  in  my  opinion  to  the  intent  of  the  Constitution,  to  withhold 
from  them  the  full  panoply,  rights  and  privileges  of  Statehood,  and  to 
keep  them  in  subjection  to  a  distant  power  over  which  they  have 
not  even  a  partial  control,  as  the  citizens  of  every  State  in  the  Union 
have. 

But  so  long  as  it  is  necessary  for  the  Territorial  condition  to  con- 
tinue, so  long  Congress  properly  discharges  the  public  trust  imposed 
upon  it  by  the  Constitution,  when  it  determines  what  shall  be  the  so- 
cial relations  within  the  particular  Territory,  while  it  remains  a  terri- 
tory. This  is  just  as  much  within  the  province  of  Congress  as  it  is  to 
create  the  machinery  of  a  Territorial  government,  and  accordingly  it 
was,  and  rightfully,  the  practice  of  Congress,  in  organizing  a  particular 
Territory,  to  prescribe  whether  the  condition  of  slavery,  or  involuntary 
servitude,  for  example,  should  or  should  not  be  allowed  therein.  This 
continued  to  be  the  practice  down  to  the  time  when  the  existence  of 
slavery  in  Territories  took  on  another  form  of  public  controversy  ;  and 
undoubtedly  the  power  of  Congress,  as  the  precedents  presently  to  be 
cited  will  show,  was  exercised  both  for  and  against  slavery,  according 
to  varying  circumstances  ;  and  the  authority  of  Congress  to  act  either 
way  could  only  be  referred  to  Section  3  of  Article  IV.  of  the  Consti- 
tution. It  is  to  the  same  source  that  the  power  to  enact  the  laws- 
against  polygamy  in  the  Territories,  which  began  to  be  enacted  in  1862, 
and  were  re-enacted  in  1882,  must  be  referred. 

But  this  matter  of  polygamy  in  Utah,  where  it  has  existed  for  forty 
years,  and  for  a  large  part  of  which  period  it  was  practised  without  any 
interference  on  the  part  of  the  Federal  Government,  and  under  circum- 
stances evincing  at  least  great  public  indiff'erence  concerning  it,  has. 


10 

now  assumed  an  entirely  new  aspect.  Of  the  voters  of  Utah  who  are 
Mormons  in  religious  faith — a  class  of  religionists  whose  religious  belief 
is  supposed  to  sanction  polygamy — about  95  per  cent,  cast  their  votes 
at  a  recent  election  in  favor  of  the  Constitution,  the  provisions  of  which 
on  the  subject  of  polygamy  are  quoted  at  the  head  of  this  opinion. 
But  few  of  the  so-called  "Gentiles"  voted  on  this  Constitution.  Of 
the  negative  votes  cast  against  the  Constitution,  504  in  number,  only 
about  one-half  were  cast  by  Mormons.  If  the  Constitution  is  accepted 
by  Congress  as  it  is  presented,  and  becomes  the  fundamental  law  of 
the  new  State  of  Utah,  the  Mormon  population,  which  is  very  largely 
the  majority,  will  be  the  governing  people  of  the  State.  They  have 
bound  themselves  to  support  and  abide  by  a  constitution  which  will 
limit  their  State  sovereignty  in  the  matter  of  polygamy  by  a  public 
compact  with  the  people  of  the  United  States.  The  question  whether 
this  will  be  a  valid,  efficient  and  Constitutional  compact,  must  be 
largely  determined  by  the  precedents  which  have  been  made  when 
other  new  States  have  been  admitted  into  the  Union  under  certain 
conditions. 

It  is  obviously  immaterial,  when  a  new  State  is  admitted  into  the 
Union,  whether  the  proposal  of  a  peculiar  condition  or  special  com- 
pact on  a  particular  subject,  is  first  suggested  by  Congress,  or  is 
brought  forward  by  the  people  who  ask  for  admission  under  a  Constitu- 
tion which  they  present.  In  either  case,  if  the  Constitution,  after  it  has 
received  the  sanction  of  Congress,  contains  a  certain  limitation  of  the 
State  sovereignt}',  a  compact  has  been  made  between  the  State  and  the 
United  States,  and  the  preliminary  question  is,  whether  it  will  be  a 
valid,  efficient  and  Constitutional  compact  or  condition  of  admission 
into  the  Union,  by  whomsoever  proposed.  On  this  question  the  pre- 
cedents will  throw  a  flood  of  light. 

The  precedents  to  which  I  shall  refer  divide  themselves  into  two 
classes.  The  first  class  comprehends  cases  which  illustrate  in  a 
very  striking  manner  the  mode  in  which  Congress  at  an  early  period 
dealt  with  slavery  in  particular  Territories  of  the  United  States.  These 
early  cases  are  three  in  number :  the  first  being  that  of  Tehnessee  ;  the 
second  is  Mississippi ;  and  the  third  is  the  Territory  of  Orleans. 

On  the  2d  of  April,  1790,  Congress  accepted  a  cession  of  the  claim 
of  North  Carolina  to  a  certain  region  of  country  west  of  that  State 
which  afterward  became  the  State  of  Tennessee.  One  of  the  condi- 
tions of  the  deed  of  cession  was  ''that  no  Regulation  made  or  to  be 
made  by  Congress  shall  tend  to  emancipate  slaves. "  (Statutes  at  Large, 
vol.  I.,  p.   106.)     In  this  cession,  North  Carolina  assumed  that  Con- 


11 

;gress  had  power  to  regulate  slavery  in  a  Territory  ;  and  using  the  very 
word  "Regulation"  which  the  Constitution  employs  as  synonymous 
with  Law,  the  State  of  North  Carolina  lays  the  United  States  under  a 
restriction  with  respect  to  the  Territory  of  Tennessee.  Congress,  by 
an  Act  passed  May  29,  1790  (Stat,  at  I-arge,  vol.  I.,  p.  123),  organized 
a  Territorial  Government  upon  the  conditions  0/  the  deed  of  cession. 
Here  then  was  a  compact  made  between  the  United  States  and  the 
State  of  North  Carolina,  that  in  governing  this  Territory  of  Tennessee 
Congress  would  make  no  law  tending  to  emancipate  slaves.  The  other- 
wise unlimited  sovereignty  of  the  United  States  to  govern  Territories 
^as  in  this  instance  limited  by  a  compact  with  the  State  of  North 
Carolina.  This  occurred  in  the  Presidency  of  Washington,  John 
Adams  being  Vice-President,  Jefferson  Secretary  of  State,  Hamilton 
Secretary  of  the  Treasury,  and  many  of  the  framers  of  the  Constitution 
being  in  Congress.  The  fact  that  Congress  limited  the  sovereign 
authority  oHhe  U?tited  States  in  this  particular  case  of  Tennessee,  does 
not  make  a  difference  in  principle  from  the  case  of  a  compact  limiting 
Jhe  sovereignty  0/  a  State. 

The   next  case  in  chronological   order  relates    to    the  Territory  of 
Mississippi,    which  was   organized  by  Act  of  Congress  passed  April  7, 
1798.     The  7th  Section  of  the  Act  prohibited  the  importation  of  slaves 
into  the  Territory  from  any  place  out  of  the  limits  of  the  United  States, 
leaving,  by  clear  implication,  a  right  to  introduce  them  from  places 
within  the  United  States.     The  3d  Section  made  this  implication  con- 
-clusive ;  for  it  excluded  the  operation   of  the   freedom  clause  in  the 
Ordinance  of  1787,  by  an  exception  which  prevented  its  application  to 
Mississippi.     When   the  bill   was  pending  in  the  House  of  Represen- 
tatives, Mr.  Thatcher,  of  Massachusetts,   moved  to  strike  out  this  ex- 
•ception,  upon  the  ground  that  the  Government  of  the  United  States 
originated  in  and  was  founded   on   the  rights  of  man,  and  could  not 
-consistently  establish  a  subordinate  government  in  which  slavery  was 
to  be  both  tolerated  and  sanctioned  by  law.     A   debate  followed,   but 
the  motion   to  strike  out  received  only  twelve  votes.      The  organic 
Act  gave  a  clear  and  unequivocal  sanction  to  slavery  in  the  Territory  of 
Mississippi.     (Annals  of  Congre.ss,  5th  Cong.,  vol.  2,  pp.  1306-13 12.) 
Afterward,  March  26th,    1804,  came  the  Act  to  organize  the  Ter- 
ritory of  Orleans.     It  contained  a  prohibition  against  the  introduction 
of  all  slaves,    **  except  by  citizens  of  the  United  States  removing  into 
the  Territory  for  actual  settlement,  and  being  at  the  time  of  such  re- 
moval bona  fide  owners  of  such  slave  or  slaves  ;  and  every  slave  import* 
'Cd  or  brought  into  the  Territory  contrary  to  the  provisions  of  this  Act 


12 

shall  thereupon  be  entitled  to  and  receive  his  or  her  freedom."  This-. 
Organic  Act,  therefore,  regulated  slavery  in  the  Territory  of  Orleans  in 
both  ways — by  permission  and  by  prohibition.  These  two  cases  of 
Mississippi  and  Orleans  are  cited  here,  not  as  compacts  made  by  the 
United  States  as  in  the  case  of  Tennessee,  but  as  evidence  that  in  1798 
and  1804  Congress  regarded  itself  as  holding  a  full  legislative  authority 
over  the  domestic  relations  of  the  inhabitants  of  a  Territory,  and  reg- 
ulated the  relation  of  slave-owner  and  slave  as  it  saw  fit.  When  we  pass. 
from  this  point  of  time  (1804)  we  leave  the  immediate  presence  of  the 
framers  of  the  Constitution  and  their  contemporary  generation,  and 
come  to  the  first  precedent  of  the  second  class  that  will  be  here  cited  ; 
namely,  the  cases  in  which  the  people  of  a  Territory  have  been  ad- 
mitted into  the  Union  as  a  State,  upon  some  condition  in  the  nature 
of  a  compact  between  the  new  State  and  the  United  States.  This  first 
precedent  of  the  second  class  is  that  of  Indiana. 

Indiana  was  formed  out  of  a  part  of  the  North  Western  Territory 
which  was  ceded  by  Virginia  to  the  United  States,  and  it  was  organ- 
ized as  a  Territory  by  Act  of  Congress  passed  May  7,  1800.  It  re- 
mained a  Territory  until  181 5.  Proceedmgs  were  then  taken  for  its 
conversion  into  a  State  ;  and  a  State  Constitution  having  been  framed 
by  a  convention  of  delegates  (June  20,  18 16),  Congress  passed  a  joint 
resolution  admitting  the  State  of  Indiana,  which  was  approved  Decem- 
ber II,  1816.  The  joint  resolution  recited  that  the  Constitution  which 
had  been  formed  by  the  people  of  the  Territory  'Ms  republican  in 
form,  and  in  conformity  with  the  principles  0/  the  articles  of  compact  3<?- 
iween  the  original  States  and  the  people  and  States  in  the  Territory- 
North  West  of  the  River  Ohio,  passed  on  the  13th  of  July,  1787."'  This, 
recital  was  followed  by  the  resolution  tn  these  terms  : 

Resolved^  Thit  the  State  of  Indiana  shall  be  one,  and  is  hereby  declared  to  be 
one,  of  the  United  States  of  America,  and  admitted  into  the  Union  on  an  equal 
footing  with  the  original  States  in  all  respects  whatsoever. 

If  we  recur  to  the  Ordinance  of  1787,  we  find  that  among  other 
fundamental  compacts  which  it  made  between  the  original  States  and 
the  people  and  States  in  the  North  Western  Territory  (meaning  all 
future  States  that  should  be  created  therein),  there  was  one  that  ex- 
cluded slavery  forever.  If  the  Congress  which  sat  under  the  Constitu- 
tion in  18 1 6  had  not  required  this  restriction  to  be  incorporated  in, 
the  Constitution  of  the  State  of  Indiana,  the  Ordinance  of  1787  would 
not  have  carried  it  into  operation  in  that  State  by  its  own  force.  But 
by  requiring  the  State  Constitution  to  be  in  conformity  with  the  com- 
pacts of  the  Ordinance,  Congress  bound  the  sovereignty  of  the  people 


13 

of  Indiana  by  a  compact  between  that  State  and  the  United  States.  Yet 
this  was  not  thought  to  produce  .any  inequaHty.  between  the  State  of 
Indiana,  as  a  member  of  the  Union,  and  all  the  other  States.  It  was 
imposed  as  a  condition  of  admission  into  the  Union  which  the  people 
of  Indiana  were  willing  to  accept  and  offered  to  accept. 

The  next  precedent  that  I  shall  cite,  although  four  years  earlier  than 
that  of  Indiana,  is  strikingly  in  point  on  the  present  question.  I  have 
stated  when  the  Territory  of  Orleans  was  organized.  The  people  of 
that  Territory  in  1812  framed  a  Constitution  for  a  State  which  they 
called  Louisiana.  It  was  part  of  the  Territory  ceded  by  France  to  the 
United  States  in  1803.  The  inhabitants  were  almost  wholly  of  French 
<iescent ;  they  spoke  the  French  language,  and  their  public  proceedings 
had  always  been  conducted  and  recorded  in  that  language,  and  not 
in  English.  This  peculiarity  of  their  social  condition  continued  down 
to  the  time  when  they  applied  for  admission  as  a  State.  Congress  im- 
posed various  conditions  on  their  admission  ;  one  of  which  was  that 
their  Constitution  should  provide  for  keeping  the  public  records  of 
judicial  and  legislative  proceedings  in  the  English  language.  It  was  a 
matter  of  interest  to  the  people  of  the  United  States  to  have  the  official 
language  of  the  State  of  Louisiana  the  same  that  it  was  in  all  the  other 
States,  although  the  popular  speech  was  the  French  tongue,  and  most 
of  the  inhabitants  knew  no  other.  But  for  this  restriction,  the  people 
of  the  State  of  Louisiana  could,  by  their  sovereign  right  of  self  govern- 
ment, have  recorded  their  proceedings  in  what  was  their  vernacular 
tongue.  But  because  they  were  required  to  make,  and  did  make,  this 
limitation  upon  their  State  sovereignty,  by  compact  with  the  United 
States,  it  has  never  been  supposed  that  the  State  of  Louisiana  has  ever 
since  been  in  the  Union  on  an  inequality  with  the  other  States.  It  is  a 
matter  of  interest  to  the  people  of  the  United  States  that  monogamy 
shall  be  the  marriage  relation  in  Utah,  as  it  is  throughout  all  the 
States.  If  the  people  of  the  proposed  State  of  Utah  covenant  in  their 
Constitution  that  polygamy  and  bigamy  shall  be  a  misdemeanor 
against  the  State,  and  that  they  never  will  change  their  Constitution  in 
this  respect  without  the  consent  of  Congress,  what  inequality  would 
this  limitation  of  their  State  sovereignty  introduce  between  the  State  of 
Utah  and  the  other  States  ?  The  other  States  have  no  such  practice  as 
polygamy  recognized  in  their  social  condition,  and  no  reason  and  no 
motive  for  making  or  offering  to  make  with  the  United  States  any 
compact  on  the  subject  of  marriage. 

The  next  precedent  to  be  cited  is  the  memorable  case  of  Missouri, 
•the  admission  of  which  convulsed  the  Union  for  a  time,  until,  under 


14 

the  lead  of  Mr.  Clay,  Congress,  in  182 1,  settled  a  condition  on  which 
it  was  to  be  admitted  into  the  Union ;  a  condition  which  formed 
a  compact  between  the  Stale  of  Missouri  and  the  United  States,  and 
one  that  unquestionably  limited  a  certain  provision  of  the  State  Con- 
stitution, and  curtailed  one  of  the  State  power?. 

The  Constitution  presented  by  the  people  of  Missouri,  framed  in 
1820,  contained  the  following  provisions  : 

Sec.  26.   The  General  Assembly  shall  not  have  power  to  pass  laws  — 
K  For  the  emancipation  of  slaves  without  the  consent  of  the  owners  ;  or  with, 
out  paying  them,  before  such  emancipation,  a  full  equivalent  for  such  slaves  sa 
emancipated,  and, 

2.   To  prevent  bona-fide  immigrants  to  this   State,  or  actual  settlers  therein^ 
from  bringing  from  any  of  the  United  Stales,  or  from  any  of  their  Territories,  such, 
persons  as  may  be  deemed  to  be  slaves,  so  long  as  any  persons  of  the  same  descrip- 
tion are  allowed  to  be  held  as  slaves  by  the  laws  of  this  State. 
They  shall  have  power  to  pass  laws — 

1.  To  prohibit  the  introduction  into  this  State  of  any  slave  who  may  have  com-. 
mitted  any  nigh  crime  in  any  other  State  or  Territory. 

2.  To  prohibit  the  introduction  of  any  slave  for  the  purpose  of  speculation,  or 
as  an  article  of  trade  or  merchandise, 

3.  To  prohibit  the  introduction  of  any  slave,  or  the  offspring  of  any  slave,  wha 
heretofore  may  have  been,  or  hereafter  may  be,  imported  from  any  foreign  coun- 
try into  the  United  States,  or  any  Territory  thereof,  in  contravention  of  any  exist- 
ing statute  of  the  United  Stales. 

4.  To  permit  the  owners  of  slaves  to  emancipate  them,  saving  the  right  of 
creditors^  where  the  persons  so  emancipating  will  give  security  that  the  slave  so 
emancipated  shall  not  become  a  pub  lie  charge. 

It  shall  be  their  duty,  as  soon  as  may  be,  to  pass  such  laws  as  may  be  neces- 
sary— 

1.  To  prevent  free  negroes  and  mulattoes  from  coming  to  and  settling  in  this. 
State,  under  any  pretext  whatever,  and 

2.  To  oblige  the  owners  of  slaves  to  treat  them  with  humanity,  and  to  abstairv 
from  all  injuries  to  them  extending  to  life  or  limb. 

(Missouri  Constitution  of  1820.) 

The  controversy  in  regard   to  the  admission  of  Missouri  was  finally- 
narrowed  down  to  the  4th  clause  of  that  part  of  the  proposed  Consti- 
tution which  defined  the  laws  that  the  General  Assembly  should  be  per- 
mitted to  pass  in  regard  to  slavery  ;  namely,  the  clause  above  printed 
in    italics.     On   the  26ih  of  February,    1821,  Mr.    Clay,  from  a  joint 
committee,  reported  in  the  House  of  Representatives  a  joint    ''Resolu- 
tion providing    for  the   admission   of  Missouri  into  the  Union,  on  a 
certain  condition"  which  resolution  was  passed  and  approved  March  2, 
1 82 1.     The  condition  appears  in  the  following  proclamation  of  Presi- 
dent Monroe,  announcing  the  admission  of  Missouri  into  the  Union; 
A  PROCLAMATION 
By  the  President  of  the  United  States. 

Whereas,  The  Congress  of  the  United  States,  by  a  joint  resolution  of  the^: 
second  day  of  March  last,  entitled  "Resolution  providing  for  the  admission  of  the- 
State  of  Missouri  into  the  Union  on  a  certain  condition,"  did  determine  and  de- 
clare "  That  Missouri  should  be  admitted  into  this  Union  on  aia  equal  footing  with 
the  original  States,  in  all  respects  whatever,  upon  the  fundamental  condition,  that 


16 

the  fourth  clause  of  the  twenty-sixth  section  of  the  third  article  of  the  Constitution 
submitted  on  the  part  of  said  State  to  Congress,  shall  never  be  construed  to  author- 
ize the  passage  of  any  law,  and  that  no  law  shall  be  passed  in  conformity  thereto, 
by  which  any  citizen  of  either  of  the  States  of  this  Union  shall  be  excluded  from 
the  enjoyment  of  any  of  the  privileges  and  immunities  to  which  such  citizen  is 
entitled  under  the  Constitution  of  the  United  States.  Provided^  That  the  Legisla- 
ture of  the  said  State,  by  a  solemn  public  act,  shall  declare  the  assent  of  the  said 
State  to  the  said  fundamental  condition,  and  shall  transmit  to  the  President  of  the 
United  States,  on  or  before  the  first  Monday  in  November  next,  an  authentic  copy 
of  said  act ;  upon  the  receipt  whereof,  the  President,  by  proclamation,  shall  an- 
nounce  the  fact :  whereupon,  and  without  further  proceedings  on  the  part  ot 
Congress,  the  admission  of  the  said  State  into  this  Union  shall  be  considered  as 
complete."  And,  whereas,  by  a  solemn  public  act  of  the  Assembly  of  the  said 
State  of  Missouri,  passed  on  the  twenty-sixth  day  of  June,  in  the  present  year,  en- 
titled,  "A  solemn  public  act  declaring  the  assent  ot  this  State  to  the  fundamental 
condition  contained  in  a  resolution  passed  by  the  Congress  of  the  United  States, 
providing  for  the  admission  of  the  State  of  Missouri  into  the  Union  on  a  certain 
condition,"  an  authentic  copy  whereof  has  been  communicated  to  me,  it  is  solemnly 
and  publicly  enacted  and  declared,  that  that  State  has  assented,  and  does  assent^ 
that  the  fourth  clause  of  the  twenty-sixth  section  of  the  third  article  of  the  Consti- 
tution of  said  Slate  ** shall  never  be  construed  to  authorize  any  law,  and  that  no 
law  shall  be  passed  in  conformity  thereto,  by  which  any  citizen  of  either  of  the 
United  States  shall  be  excluded  from  the  enjoyment  of  the  privileges  and  immuni- 
ties to  which  such  citizens  are  entitled  under  the  Constitution  of  the  United 
States."  Now,  therefore,  I,  James  Monroe,  President  of  the  United  States,  in 
pursuance  of  the  resolution  of  Congress  aforesaid,  have  issued  this,  my  Proclama- 
tion, announcing  the  fact,  that  the  said  Stale  of  Missouri  has  assented  to  the  funda- 
mental condition  required  by  the  resolution  of  Congress  aforesaid  ;  whereupon  the 
admission  of  the  said  State  of  Missouri  into  the  Union  is  declared  to  be  complete. 

In  testimony  whereof,  I  have  caused  the  seal  of  the  United  States  of  America 

to  be  affixed  to  these  presents,  and  signed  the  same  with  my  hand. 

[l.  s.]         Done  at  the  City  of  Washington,  the  tenth  day  of  August,  1821,  and  of 

the  Independence  of  the  said  United  States  of  America  the  forty-sixth. 

JAMES  MONROE. 
By  the  President.  ,  .  ^ 

John  Quincy  Adams,  iJiid»JCiU(l  ^U  . 

Secretary  of  State. 

One  other  precedent  completes  the  list  of  those  that  need  to  be 
cited  in  this  opinion  ;  namely,  the  case  of  Nebiaska. 

The  following  is  part  of  the  Act  of  Congress  which  prescribed  the 
conditions  on  which  Nebraska  was  to  be  admitted: 

Provided^  That  the  Constitution  when  formed  shall  be  republican,  and  not  re- 
pugnant to  the  Constitution  of  the  United  States  and  the  principles  of  the  Declara- 
tion of  Independence  ;  and  provided  further.  That  the  said  Constitution  shall  pro- 
vide, by  an  article  forever  irrevocable,  without  the  consent  of  the  Congress  of  the 
United  States— 

First.  That  slavery  or  involuntary  seivilude  shall  be  forever  prohibited  in 
said  State. 

Second.  That  perfect  toleration  of  religious  sentiment  shall  be  secured,  and  no 
inhabitant  of  said  State  shall  ever  be  molested  in  person  or  property  on  account  of 
his  or  her  mode  of  religious  worship.  * 

Third,  That  the  people  inhabiting  said  Territory  do  agree  and  declare  that 
they  forever  disclaim  all  right  and  title  to  the  unappropriated  public  lands  lying 
within  said  Territory,  and  that  the  same  shall  be  and  remain  at  the  sole  and 
entire  disposition  of  the  United  States,  and  that  the  lands  belonging  to  citizens  of 
the  United  States  residing  without  the  said  State  shall  never  be  taxed  higher  than 
the  land  belonging  to  residents  thereof,  and  that  no  taxes  shall  be  imposed  by  said 


16 

State  on  lands  or  property  therein,  belonging  to  or  which  may  hereafter  be  pur- 
chased by  the  United  States.  *         . 

Appendix  to  the  Congressional  Globe,  pt.  3,  1864.  38th  Cong.,  1st  Sess., 
P-,,I53- 

Extract  from  the  act  admitting  Nebraska: 

Sec.  6.  This  Constitution  is  formed,  and  the  State  of  Nebraska  asks  to  be  ad- 
niitted  into  the  Union  on  an  equal  footing  with  the  original  States,  on  the  condition 
and  faith  of  the  terms  and  propositions  stated  and  specified  in  an  act  of  Congress, 
approved  April  19th,  1864,  authorizing  the  people  of  the  Territory  to  form  a  Con- 
stitution and  Slate  government,  the  people  of  the  State  of  Nebraska  hereby  accept- 
ing the  conditions  in  said  act  specified. 

Nebraska.     Act  of  admission,   1867.     The  Federal   and  State  Constitu- 
tions, etc.,  of  the  U.  S.,  part  II.     2d  ed.  p.  1212. 

From  these  precedents — and  it  is  unnecessary  further  to  multiply 
•citations — the  following  appear  to  be  settled  as  established  principles 
of  Congressional  action  on  the  admission  of  new  States  into  the 
Union  : 

I  St.  That  Congress  can  prescribe  conditions  on  which  a  new  State 
shall  be  admitted  into  the  Union  ;  and  that  such  conditions  do  not 
necessarily  relate  to  matters  on  which  any  other  State  has  been  re- 
quired to  make  provision  in  its  Constitution,  but  that  in  each  case 
they  may  grow  out  of  the  particular  predicament  or  situation  of  the 
State  asking  admission. 

2d.  That  Congress  may  prescribe  the  conditions  in  advance,  so 
that  when  the  State  Constitution  is  presented  for  the  approval  of  Con- 
gress, it  may  be  found  to  contain  the  conditions  ;  or  the  people  of  the 
proposed  new  State  may  themselves,  without  previous  requirement, 
present  such  conditions  as  they  are  willing  to  make.  In  either  mode 
of  action,  when  the  conditions  have  been  sanctioned  by  Congress,  and 
the  State  is  admitted  into  the  Union  with  those  conditions  embodied 
or  fulfilled  in  its  constitution,  a  compact  has  been  made  between  the 
State  and  the  United  States. 

3d.  That  the  compact  so  made  may  be  one  that  curtails,  limits, 
or  diminishes  either  the  sovereignty  of  the  people  of  the  State,  or  the 
power  of  its  legislature,  in  some  domestic  matter,  or  it  may  be  one 
that  concerns  some  property  interest  or  some  right  of  the  United  States, 
or  of  some  other  State. 

4th.  That  such  compacts,  limiting  or  curtailing  the  sovereignty  of 
a  State,  may  be  absolute,  or  they  may  be  made  in  a  form  that  will  re- 
quire the  assent  of  Congress  to  any  change. 

Hence  it  follows,  that  the  proposal  of  the  Constitution  for  Utah, 
whereby  the  people  of  that  Territory,  if  admitted  under  this  Constitu- 
tion, would  bind  themselves  never  to  change  their  Constitution  in  re- 
:spect  to  polygamy  and  bigamy  without  the  assent  of  Congress,  would 


IT 

not  be  a  new  and  unprecedented  compact,  but  that  it  would  be  in  the 
same  form  and  the  same  terms  in  which  similar  compacts  have  been 
made  with  other  new  States. 

The  objection,  therefore,  which  has  been  made  to  the  proposed 
Constitution  for  Utah — that  the  clauses  relating  to  polygamy  and  bigamy 
would  be  of  no  value,  and  of  no  binding  force  or  efficacy,  because  the 
sovereignty  of  a  State,  after  it  is  once  in  the  Union,  cannot  be  thus 
controlled — is  entirely  untenable.  Nor  is  the  argument  ab  inconvenienti 
of  any  greater  force.  The  question,  as  a  matter  of  public  policy,  is 
whether  the  polygamy  that  has  existed  in  Utah  for  so  long  a  period 
can  most  effectually,  easily,  and  with  the  least  irritation  be  ended  by 
keeping  up  the  Territorial  form  of  government  and  by  Federal 
legislation,  or  by  admitting  Utah  as  a  State  under  the  proposed  Con- 
stitution, with  its  prohibition  against  polygamy  and  bigamy  made 
operative  forever  without  the  previous  assent  of  Congress  to  any  change. 
The  balance  of  convenience  and  advantage  is  by  a  great  weight  on  the 
side  of  admitting  the  State  under  the  proposed  Constitution.  It  can 
never  be  otherwise  than  inconvenient  and  embarrassing  for  Congress  to 
continue  to  legislate  on  the  subject  of  polygamy  in  such  a  community 
as  Utah,  or  to  deal  with  the  social  relations  that  have  grown  out  of  it. 
It  is  supposed  that  the  practice  of  polygamy  has  arisen  out  of  a  pecu- 
liar religious  faith  ;  and  such  is  undoubtedly  the  fact.  While  it  is  un- 
questionably true  that  the  legislative  power,  wherever  it  resides,  can 
restrain  and  punish  any  practice  or  conduct  that  is  injurious  to  the 
welfare  of  society,  although  that  practice  or  conduct  may  be  dictated 
by  a  sincere  religious  belief,  yet  there  is  always  danger  of  encroach- 
ment on  the  rights  of  religious  belief  when  repressive  measures  are  re- 
sorted to  in  respect  to  any  practice  or  conduct  that  has  its  origin  in  or 
is  connected  with  a  religious  faith.  Hitherto  the  legislation  of  Con- 
gress against  polygamy  in  the  Territories  has  not  escaped  this  danger  ; 
for,  in  one  respect  at  least,  that  legislation  has  been  so  interpreted  and 
administered  by  the  Territorial  Courts  in  Utah,  that  the  rights  of 
religious  belief  have  been  disregarded,  because  men  have  been  punish- 
ed in  the  penitentiary  for  conduct  that  was  perfectly  innocent  in  itself, 
and  could  have  been  dictated  only  by  a  sense  of  religious  and  moral 
duty.  Congress  could  never  have  intended  such  a  result  of  its  legisla- 
tion. It  has  been  one  of  the  consequences  of  the  form  of  Territorial 
Government,  and  of  the  spirit  which  that  form  of  government  is  apt  to 
engender  in  the  administration  of  laws  aimed  at  a  particular  offence  in 


18 

a  peculiar  state  of  society.  *  As  the  alternative  to  the  longer  continu- 
ance of  Utah  under  the  Territorial  government,  there  is  now  presented 
a  plan  for  remitting  this  whole  matter  of  polygamy  to  the  people  of 
Utah  themselves,  under  the  guaranty  of  a  public  compact  with  the 
United  States  that  it  shall  be  forever  an  offence  against  the  State,  and 
that  in  this  respect  the  Constitution  of  the  State  shall  never  be  changed 
without  the  assent  of  Congress.  No  reasonable  person  can  doubt  that 
the  people  of  Utah  will  live  up  to  what  they  thus  promise,  because  it 
is  plain  that  they  must  live  up  to  it  after  they  have  made  witk  the 
United  States  the  compact  which  they  propose. 

In  regard  to  the  clause  which  proposes  to  require  the  assent  of  the 
President  of  the  United  States  to  a  pardon  of  the  offence  of  polygamy 
or  bigamy,  there  can  be  no  possible  objection  to  it  as  a  limitation  of  the 
State  sovereignty,  if  the  precedents  above  cited  are  to  be  regarded.  In 
principle,  it  stands  upon  the  same  footing  as  the  compacts  which  have 
required  the  assent  of  Congress  to  any  change  in  the  conditions  on 
which  a  State  has  been  admitted  into  the  Union.  The  only  possible  ob- 
jection that  can  be  made  to  it  would  be  that  it  might  be  inconvenient 
to  the  President.  But  this  inconvenience  would  practically  be  very 
slight.  The  convict  would  know  that  to  obtain  a  valid  pardon,  he 
must  get  the  consent  of  the  State  Executive  and  also  the  consent  of  the 
President  of  the  United  States.  The  State  Executive  would  never  be 
likely  to  send  up  a  case  for  the  consideration  of  the  President  without 
careful  investigation  ;  the  papers  would  come  before  the  President  in  a 
shape  to  enable  him  to  form  his  judgment  very  easily  ;  and  there  would 
not  be  imposed  upon  him  an  amount  of  labor  to  be  compared  to  what 
he  has  to  perform  whenever  he  is  asked  to  pardon  a  person  who  has 
been  convicted  in  a  Federal  Court  of  an  offence  against  the  United 
States.  As  the  pardon  of  the  State  Executive  must  first  be  obtained,  the 
responsibility  resting  on  the  President  would  be  far  less  than  in  the 
case  of  offences  against  the  United  States. 

Finally,  it  is  to  be  noted  that  the  Supreme  Court  of  the  United 
States  has  expressly  held  it  to  be  no  objection  to  the  validity  of 
a  compact  made  by  a  State,  that  it  diminishes  the  State  sover- 
eignty. It  was  so  held  in  relation  to  a  special  compact  that  was 
peculiar  to  the  situation  of  the  State  in  question.  In  1823  the 
Supreme  Court  held  that  it  is  not  a  valid  objection  to  a  com- 
pact made  between  two  States,  with  the  consent  of  Congress, 
that  it  restricts  the  legislative  power  of  one  of  them  in  certain  par- 

*  See  The  Forum  for  November,  1887,  article  entitled  **  Shall  Utah  Become  a 
State,"  for  an  explanation  of  the  Federal  legislation  and  the  mode  of  its  ju4iciJVl 
administration  in  the  Territory  of  Utah, 


19 

ticulars.     (Green  1).  Middle,    8   Wheaton,   i.     See  also  Spooner  v^ 
McConnel,  i  McLean,  337.) 

The  Supreme  Court  of  the  United  States  has  also  had  occasion  to 
pass  upon  compacts  made  between  a  State  and  the  United  States,  and 
has  upheld  them  as  valid  and  binding. 

(See  Wright  v.  Stokes,  3  Howard,  151  ;  Neal  v.  Ohio,  Ibid., 
720.     Atchison  v.  Huddleston,  12  Howard,  293.) 

Perhaps  it  is  not  strictly  within  the  scope  of  the  opinion  that  I 
have  been  asked  to  give,  for  me  to  point  out  in  what  way  there  would 
be  a  remedy,  if  the  people  of  Utah,  after  they  had  been  admitted  as  a 
State  under  the  proposed  Constitution,  were  to  undertake  to  repeal  or 
change  their  Constitution,  in  the  particulars  in  question,  without  the 
assent  of  Congress,  and  thus  to  give  a  tacit  toleration  or  sanction  to 
the  further  practice  of  polygamy.  This  would  be  a  rather  wild  suppo- 
sition, inasmuch  as  such  action  could  give  no  legal  existence  whatever 
to  plural  marriages,  and  there  is,  therefore,  no  likelihood  that  they 
would  ever  be  entered  into.  But  let  the  supposition  be  made.  Inas- 
much as  the  corner-stone  of  my  position  is  that  the  breach  of  the  pro- 
posed compact  would  not  be  without  remedy,  I  will,  in  consistency 
with  myself,  state  what  I  hold  that  remedy  to  be. 

There  is  a  clause  in  the  Constitution  of  the  United  States  which 
was  designed  to  confer  on  Congress  legislative  power  to  carry  into  effect 
every  part  of  that  Constitution  which  requires  legislative  action  for  its 
execution.  The  clause  is  the  last  in  Section  8  of  Article  I.,  and  is  in 
these  words  : 

**  The  Congress  shall  have  power  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers,  and  all  other  pow- 
ers vested  by  this  Constitution  in  the  Government  of  the  United  States,  or  in  any 
department  or  oflScer  thereof." 

It  has  never  been  my  tendency  to  magnify  the  scope  of  implied 
powers.  But  on  the  construction  and  operation  of  the  clause  just 
quoted,  in  the  matter  now  under  consideration,  I  cannot  have  any 
doubt  whatever.  One  of  the  express  powers  vested  by  the  Constitu- 
tution  in  Congress  is  the  power  to  admit  new  States  into  the  Union. 
It  has  been  seen  that  by  a  course  of  very  strong  precedents  this  power 
has  been  considered  as  embracing  a  clear  authority  to  prescribe  condi- 
tions of  admission.  Such  a  steady  and  uniform  practical  construction 
of  this  power  is  of  very  great  weight ;  and  assuming  that  the  power 
to  impose  conditions  exists  in  ample  authority,  because  it  has  been 
r  epeatedly  exercised  without  ever  being  successfully  denied,  the  ques- 
tion is  whether  Congress  is  not  clothed  with  authority  to  make  all  law;^ 


20 

which  shall  be  necessary  and  proper  to  enforce  those  conditions,  in 
case  they  are  broken.  I  cannot  doubt  that  it  is.  The  legislation  that 
would  be  appropriate  and  necessary  would  be  that  which  would  reach 
and  restrain  or  punish  individuals  who  should  undertake  to  avail 
themselves  of  the  State  authority  or  assent  to  a  practice  which  the  State 
has  covenanted  with  the  United  States  shall  not  be  tolerated  in  her 
borders. 

Take  as  an  illustration  one  of  the  prohibitions  resting  on  the 
Slates:  " No  State  shall,  without  the  consent  of  Congress  *  *  * 
enter  into  any  agreement  or  compact  with  any  other  State. "  If  any 
State  were  to  do  so,  Federal  legislation  would  easily  reach,  restrain  or 
punish  individuals  who  should  do  any  act  in  carrying  out  the  un- 
constitutional compact  or  agreement,  or  claim  any  benefit  from  it. 
The  reason  why  we  have  not  had  such  legislation  has  not  been  because 
it  could  not  constitutionally  exist. 

Before  1 860-61,  no  State  broke  a  special  compact  which  it  made 
with  the  United  States  when  it  entered  the  Union.  After  that  period, 
when  some  of  the  States  undertook,  by  secession  from  the  Union,  to 
break  the  grand  compact  between  themselves  and  the  United  States 
that  is  embraced  in  the  Constitution,  we  had  abundant  Federal  legisla- 
tion to  reach,  restrain  and  operate  upon  the  inhabitants  of  those 
States ;  and  it  will  not  do  at  the  present  day  to  question  the  funda- 
mental principle  on  which  much  of  that  legislation  was  based. 

It  has  been  urged  that  a  preferable  mode  of  dealing  with  polygamy 

would  be  by  an  amendment  of  the  Constitution  of  the  United  Slates, 

rather  than  by  admitting  Utah  under  the  proposed  State  Constitution. 

An   amendment  was  introduced  Jn    the    last  Congress,  which    was 

drawn  in  the  following  terms  : 

Sec  I.  The  marriage  relation,  by  contract  or  in  fact,  between  one  person  oi 
either  sex  and  more  than  one  person  of  the  other  sex,  shall  be  deemed  polygamy. 
Neither  polygamy  nor  any  polygamous  association  or  cohabitation  between  the  sexes 
shall  exist  or  be  lawful  in  any  place  within  the  jurisdiction  of  the  United  States  or 
of  any  State. 

Sec  2.  The  United  States  shall  not,  nor  shall  any  State,  make  or  enforce  any 
law  which  shall  allow  polygamy  or  any  polygamous  association  or  cohabitation  be- 
tween the  sexes,  but  the  United  States  and  every  State  shall  prohibit  the  same  by 
law  within  their  respective  jurisdictions. 

Sec  3.  The  judicial  power  of  the  United  States  shall  extend  to  the  prosecu- 
tion of  the  crimes  of  polygamy  and  of  a  polygamous  association  or  cohabitation 
between  the  sexes  under  this  article,  and  Congress  shall  have  power  to  declare  by 
law  the  punishment  therefor,  ^ 

Sec.  4.  Nothing  in  the  Constitution  or  this  article  shall  be  construed  to  deny  to 
any  State  the  exclusive  power,  subject  to  the  provisions  of  this  article,  to  make  and 
enforce  all  laws  concerning  marriage  and  divorce  within  its  jurisdiction,  or  to  vest 
n  the  United  States  any  power  respecting  the  same  within  any  State. 


21 

The  objections  to  this  proposed  amendment  may  be  thus  sum- 
marized : 

I  St.  The  Constitution  of  the  United  States  should  not  be  amended 
without  some  public  necessity,  to  accomplish  an  object  of  common 
cencern  to  the  people  of  the  United  States,  which  cannot  be  accom- 
plished as  well,  or  cannot  be  accomplished  at  all,  by  some  other 
method.  Multiplication  of  Constitutional  amendments,  and  the  invo- 
cation of  the  necessary  machinery,  are  very  undesirable. 

2d.  No  State  in  this  Union  has  ever  had  any  practice  of  polygamy 
among  its  people,  as  a  recognized  social  relation,  having  its  origin  in 
or  being  in  any  way  connected  wiih  a  religious  faith,  or  having  its  ori- 
gin in  anything  else.  The  crime  of  bigamy,  sporadically  occurring, 
and  always  clandestinely,  is  punished  by  State  statutes,  and  needs  no 
Federal  interference.  The  normal  and  unchangeable  relation  of  mar- 
riage in  all  the  States  is  monogamy  :  and  no  State  is  in  any  peril  of 
polygamy,  or  needs  to  invoke  the  aid  of  the  United  States  to  prevent 
any  change  in  its  civiligation  in  this  respect. 

3d.  Polygamy  is  a  practice  that  has  existed  as  an  open  and  recog- 
nized relation  between  the  sexes  only  in  two  or  three  of  the  Territories 
of  the  United  States.  It  has  existed  more  extensively  in  Utah  than  in 
any  other  Territory,  but  it  is  a  well  ascertained  fact  that  even  in  that 
Territory,  where  a  large  majority  of  the  inhabitants  hold  the  religious 
faith  that  is  supposed  to  sanction  this  form  of  the  marriage  relation, 
only  two  or  three  cases  of  prosecution  for  new  polygamous  marriages 
have  come  before  the  criminal  courts  of  the  Territory  in  the  past  two 
years,  under  the  Federal  statutes.  To  put  in  motion  the  machinery  of 
amending  the  Constitution  of  the  United  States,  in  order  to  end  this  so- 
cial evil  in  a  certain  locality,  rather  than  to  rely  on  the  provisions  and 
compacts  of  the  State  Constitution  proposed  by  the  Mormon  inhabi- 
tants of  Utah,  would  be  manifestly  inexpedient  and  unnecessary'. 

4th.  The  proposed  amendment  of  the  Federal  Constitution  is  objec- 
tionable in  the  following  particulars  : 

Section  i,  which  prohibits  polygamy  in  any  State,  proposes  to  inter- 
dict something  that  does  not  now  exist  in  any  State,  and  is  in  no  like- 
lihood of  ever  existing  there. 

Section  2  requires  every  State  to  prohibit  polygamy  within  its  juris- 
diction, although  in  every  State  a  polygamous  marriage  is  now  bigamy 
by  statute  law. 

Section  3  extends  the  judicial  power  of  the  United  States  to  the 
prosecution  of  the  crime  of  polygamy,  although  that  offence  is  now  a 
crime  in  every  State  against  the  State  itsel£ 


Sectioii  4  introduces  what  would  be  found  to  be  ati  embarrassing 
confusion  between  the  State  jurisdiction  over  marriage  and  divorce, 
and  the  proposed  Federal  jurisdiction  over  polygamy. 

All  the  sections  i,  2  and  3  introduce,  beside  the  definition  of  polyg- 
amy, the  undefined  and  uncertain  offences  of  "polygamous  associa- 
tion or  cohabitation  between  the  sexes. "  Polygamy  is  easily  defined 
as  the  marriage  of  one  man  and  more  than  one  woman.  Polygamous 
association  or  cohabitation  between  the  sexes  is  either  a  needless  tau- 
tology, or,  if  it  was  intended  to  make  a  distinct  offence,  the  framers 
of  the  amendment  have  not  defined  it,  and  they  probably  could  not. 
What  comes  of  leaving  the  definition  of  **  cohabitation  "  to  judicial  in- 
terpretation, as  an  offence  distinct  from  polygamy,  has  been  abun- 
dantly and  cruelly  illustrated  by  the  judicial  administration  of  the 
Federal  statutes  in  Utah,  where  men  who  did  not  live  with  any  plural 
wife  have  been  consigned  to  the  penitentiary  for  supporting  and  show- 
ing perfectly  innocent  and  harmless  attentions  to  women  whom  they 
married  long  before  there  was  any  law  prohibiting  such  marriages. 

Speaking  as  a  citizen  of  the  United  States  and  of  one  of  the  States  of 
the  Union,  I  should  be  unalterably  opposed  to  a  cession  to  the  Federal 
Government  of  any  power  to  regulate  the  marriage  relation,  in  any  form, 
in  the  States.  In  the  Territories  and  in  the  District  of  Columbia,  the 
United  Stales  have  now  all  the  authority  over  the  marriage  relation  that 
is  needful,  and  in  respect  to  the  Territories  more  authority  than  has 
been  wisely  used.  I  should  gladly  do  anything  in  my  power  to  end 
what  polygamy  remains,  in  a  merciful  and  Christian  spirit ;  and, 
speaking  as  a  lawyer,  I  have  no  hesitation  in  saying  that  the  compact 
which  the  Mormon  inhabitants  of  Utah  now  offer  to  make  with  the 
United  States  would  be,  in  my  judgment,  perfectly  valid,  consistent 
with  our  system  of  government,  and  efficient  for  everything  that  can 
be  desired. 

GEO.  TICKNOR  CURTIS, 
New  York,  Oct.  25,  1887. 


Lithomount 

Pamphlet 

Binder 

Gay  lord  Bros. 

Makers 

Syracuse,  N.  Y. 

PAT.  JAN  21,  1908 


